The Central Eastside Industrial Council and other interested businesses sought LUBA review of the City of Portland’s decision that a houseless rest area and tent camp for houseless persons was a Community Service Use allowed in the General Industrial Zone (IG1 Zone). The city’s decision would have allowed the Right 2 Dream Too (“R2DToo”) Camp to relocate from downtown Portland to land near Oregon’s Museum of Science and Industry. The subject property is designated as an industrial sanctuary in the city’s Comprehensive Plan.
The City of Lake Oswego added the Carman House to its inventory of historic landmarks in 1990, pursuant to Statewide Planning Goal 5. The oldest extant residential structure within the City, the Carman House is considered a rare and valuable example of a territorial Oregon residence. The owners at the time, Mr. Wilmot and Mr. Gregg filed an objection to the designation. However, since the city could designate a property as historic without a property owner’s consent, the property was designated over the owners’ objections.
In Walter v. City of Eugene, (LUBA No. 2106-024, June 30, 2016), the applicant appealed the City’s planning commission decision to deny an application for a planned development of a ten-lot subdivision with an additional lot left as open space. Land surrounding the subject site had been purchased by the City in 2014 to maintain as a natural area and part of a trail system, which would prevent the developer from extending a local road to the subdivision. Instead, the development relies on a proposed shared driveway. A hearings officer reviewed the proposal and denied the application under the local planned unit development (PUD) code that requires the street layout of the PUD to disperse motor vehicle traffic onto more than one public local street. The planning commission affirmed the hearings officer’s decision.
Oregon’s Planning Goal 1, Citizen Involvement, requires citizen involvement “in all phases of the land use planning process.” The Goal requires local governments to provide for public input when land use plans and regulations are adopted and amended. Oregon law also requires, among other things, notice and opportunity to be heard during land use proceedings. Although one of the original land use goals, Goal 1 is rarely used or relied on by LUBA or the courts as a basis to overturn a local government decision; however, efforts to change its scope are constant. Oregon and Washington courts have recently had an opportunity to consider some creative efforts to alter the scope of public participation.
Every year or so LUBA issues a decision reminding local governments of their obligations under state law to apply only “clear and objective” approval criteria to applications for “needed housing.” Although local governments may use a dual-path review system that includes a discretionary track, (often containing incentives to encourage developers to pursue this course), a local government must under state law have a clear and objective path in which the local procedures and standards “may not have the effect…of discouraging needed housing through unreasonable cost or delay.” Group B, LLC v. City of Corvallis decided this fall is such a case.
For the past nine years, Thornburgh Resort Company, LLC and its successor Loyal Land, LLC have attempted to site a destination resort on 2,000 acres in Deschutes County. Ms. Annunziata Gould has continually challenged this effort. The latest challenge, Gould v. Deschutes County (Gould X), may have been the last, for the Oregon Court of Appeals latest decision identified some significant boundaries to the deference that it and LUBA must give to local government interpretations of their own plan and land use regulations. A little background is necessary.
Kerns v. Pendleton marks a historic step for Oregon and the nation. In 1979, the Oregon Legislature created the Land Use Board of Appeals (LUBA) as an administrative body, which had “exclusive jurisdiction” over most land use decisions of local governments. Until this time, Oregon and other states gave that role to local trial courts. However, with the passage of a coordinated state system of land use planning and regulation in 1973, courts were less familiar with the bevy of rules and statutes that were now applicable to local planning. Moreover, those courts were also faced with giving priority to speedy trials in criminal cases, particularly for defendants who were incarcerated. Additionally, the development community pressed for a system that was speedy and more certain.
LUBA’s creation was a four-year trial of a new system in which persons dissatisfied by a local government (and sometimes a state agency) land use decision was required to appeal that decision in 30 days, unlike the 60 days that had been the previous timeline. Unlike trial courts, LUBA had time limits to decide appeals and its decisions were appealable to the Oregon Court of Appeals. The original members of the Board were Michael Reynolds, a former Assistant Attorney General and previous counsel to the Land Conservation and Development Commission (LCDC), John Bagg, a former local government attorney, and William Cox, who had represented development interests in private practice.
Carter Kerns was one of three neighbors (together “Petitioners”) who appealed Pendleton’s decision to annex and rezone a 22-lot subdivision on 12.36 acres on several grounds: violation of the statewide planning goals, unlawful procedures and violation of an administrative rule adopted by LCDC that limited annexations of land prior to acknowledgment of the City’s plan (i.e. certification that its plan and land use regulations complied with the statewide planning goals).
In September 2014, I reported on the Parkview Terrace Development case, where the developer applied to transform Phases II and III of a planned unit development (PUD) from for sale townhouses to multi-family rentals and the City denied the application. LUBA reversed the City’s denial of an affordable housing development and ordered the City to grant the developer approval. In the Parkview Terrace blog post, I suggested that the case was ripe for an award of attorneys’ fees and LUBA recently issued an order on the fee motion.
The developer sought to recover over $39,000 in attorneys’ fees and had originally sought a mandatory fee award against the City of Grants Pass under ORS 197.835(10)(b) because LUBA reversed the City’s decision. However, LUBA’s order describes that the developer subsequently withdrew its motion for attorneys’ fees against the City. I can only surmise that the developer, a rental housing provider, calculated that its long-term working relationship with the City would not be bolstered by pursuit of these fees.
Thus, LUBA was left to determine whether the project neighbors should be on the hook for the developer’s fees. The standard of review for attorneys’ fee motions in land use matters is whether LUBA finds that a party presented a position without probable cause to believe the position was well-founded in law or on factually supported information. In these circumstances, “without probable cause” is where no reasonable lawyer would conclude that any of the legal points asserted on appeal possessed legal merit. In order to avoid attorneys’ fees in land use cases, a party must present at least one argument on appeal that satisfies the probable cause standard.
As the Oregon Legislative session moves into full-swing giving spectators a front row seat to frantic lobbying and frenetic lawmaking, the Oregon Court of Appeals issued a decision that should remind those involved in this pastime affectionately known as “sausage-making,” to consider the importance of the deliberations. The decision relates to efforts to remove the oldest home in Lake Oswego, the historic Carman House, from the City of Lake Oswego’s inventory of historic resources and potentially allow for its demolition, as described in my previous blog post. In 1995, the Oregon Legislature passed the statute at issue, ORS 197.772, which precludes a local government from imposing a historic designation on a property over “a property owner’s” objection. Subsection (3) of that same statute further provides that “a property owner” may subsequently seek to remove a historic designation that was imposed. The issue before LUBA and the Court in the case, Lake Oswego Preservation Society v. City of Lake Oswego, was whether a request to remove a designation after it has been imposed must be made by the same property owner who originally objected or whether a subsequent owner may also seek removal.
The general rule when interpreting a statute is to focus on the text and context of the provision. However, courts will also look to the legislative history to determine intent. In the Lake Oswego case, the Court found, as had LUBA, that the text and context for determining who was included as “a property owner” under ORS 197.772 was not particularly helpful and it turned to the legislative history. This history came largely from two hearings before the House Committee on General Government and Regulatory Reform. LUBA keyed into a statement by one of the bill’s authors, when asked whether a subsequent purchaser could seek to remove historic designation, responded that “[w]e haven't thought about that situation.” LUBA also noted that a proposed amendment making clear that in cases where the property owner does not object, subsequent owners are bound to the designation, and was rejected and not included in the engrossed bill. Based on those comments, LUBA concluded that the drafters intended to afford relief only to those property owners on whose property the designation had been imposed.
The Court of Appeals analysis of the legislative history makes no mention of those portions of the legislative history that LUBA found important. Instead, the court highlighted that the legislation was to allow owners that were “coerced into the historic property designation” to seek removal of that designation. The court quoted from another representative summarizing the scope of subsection (3) to include those cases where “property owners were not allowed to consent and government imposed it on them that now they would have an opportunity to remove their property from that designation.” From this, the court concluded that the amendment allows “individuals who own property on which historic designations had been involuntarily imposed by the local government – before the enactment of ORS 197.772 – to have that designation removed.” The court explained that the focus during these committee meetings was on providing relief in cases where a designation was imposed over an owner’s objection and not on whether subsequent purchasers could also take advantage of the previous owner’s objection. Further, the court found that preservation advocates’ concerns that adoption of subsection (3) would have the effect of “dismantling historic districts” and a lack of response by the proponents indicated an intent to have broad effects. As a result, the court concluded that any property owner that has a local historic designation forced on their property may remove that designation.
What is so interesting about this case is that two review bodies looked at the same legislative history and reached diametrically opposing conclusions. Maybe the difficulty is that the Court of Appeals failed to mention, much less explain, why the comments that LUBA found instructive were not helpful. How could the court find that committee discussions focused solely on giving relief to those owners who were “coerced into a historic preservation designation” and from that extend that same protection to property owners who were not coerced but instead knowingly purchased a designated property? If this ruling rests on the conclusion that the legislature intended the effect of ORS 197.772 to “dismantle” historic preservation efforts, legislators, both proponents and opponents, need to be much more descriptive and particular in describing their intent.
In Parkview Terrace Development LLC v. City of Grants Pass, LUBA No. 2014-024 (July 23, 2014), LUBA considered the appeal of a City Council decision that denied the Petitioner site plan approval and a variance from street and block length standards to permit construction of 50 units of federally assisted housing for low-income individuals.
The subject property is zoned High Density Residential (R-3) and includes approximately 3.02 acres. The site is neighbored by residential townhouses, a warehouse, a mini-storage facility and a City park. In 2006, the City approved a planned unit development (PUD) for 88-units, but only 28 townhouses were constructed before the project was shelved during the recession. The Petitioner, a successor-in-interest to the original developer, wanted to build a 50-unit multi-family housing project in place of the second and third phases of the PUD. In contrast to the for sale townhouses, the new units would be rental units. Although the project was supported by staff and the Planning Commission, the City Council denied the application.
The applicant appealed because the City Council applied standards that were not “clear and objective” under the needed housing statute, ORS 197.307(4), and because the City Council erred in its findings related to variance criteria. LUBA agreed and reversed the decision. The following standards were not considered clear and objective:
• A standard that the proposal comply “with applicable elements of the Comprehensive Plan, including: Traffic Plan, Water Plan, Sewer Plan, Storm Drainage Plan, Bicycle Plan, and Park Plan,” where the City Council’s decision focused on the Traffic Plan which is an eight chapter long Master Transportation Plan. Many of the goals and objectives in the Traffic Plan are not clear and objective.
• A standard that requires “potential land use conflicts have been mitigated through specific conditions of development,” where the City Council concluded without explanation that the criterion was not satisfied. LUBA found that mitigation of “potential land use conflicts” is not clear and objective.
• A standard requiring that “adequate basic urban services are available, or can be made available by the applicant as part of a proposed development or are scheduled by the City Capital Improvement Plan.” The terms “adequate,” “basic urban services” and “available” are not explained in the Code, and without some explanation those terms are not clear and objective.
• A standard that the “provision of public facilities and services to the site will not cause service delivery shortages to existing development” was not clear and objective because the Code did not provide guidance regarding the scope of “public facilities and services” or how to go to determine if the proposal will cause service delivery shortages to existing development or what qualifies as a shortage.
• A standard regarding mitigation for special design consideration related to existing adjacent development was not clear and objective because the requirement to “mitigate” and the methods of suggested mitigation (e.g., landscaping, additional setbacks, and screening) were not clear and objective.
• A standard requiring that “traffic conflicts and hazards are minimized on-site and off-site” as provided in an Article of the Code was not clear and objective because the Council’s conclusion that the criterion was not satisfied did not explain minimization to on-site and off-site conflicts and hazards, and the Codes reference to a 32-page Article of the Code was too vague.
• A standard that requires “there are adequate provisions for maintenance of open space and other common areas” was not clear and objective, where the City engaged in a subjective analysis of whether the open space and common areas were “adequate.”
In addition to the failure of the City’s standards to meet the clear and objective requirement, the Council’s denial of a variance application was either similarly tainted, or impacts of a grant of the variance could have been mitigated through conditions.
Not only did LUBA reverse the City’s decision but required that the City approve the project in accordance with the Planning Commission’s decision and associated conditions. Stay tuned! This is the rare case where LUBA may consider a grant of attorney fees because the City Council’s findings were made in complete disregard to the Petitioner’s complaints that the standards were not clear and objective.
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